Ferricks v The Queen

[1989] HCATrans 148

,::.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B42 of 1988

B e t w e e n -

MILES JAMES FERRICKS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON .J

Ferricks

McHUGH Jf

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 28 JUNE 1989, AT 12.38 AM

Copyright in the High Court of Australia

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MR W.T. McMILLAN:  May it please the Court, I appear on

behalf of the applicant. (instructed by Robertson

O'Gorman)

MR J. BYRNE:  If the Court pleases, I appear with my learned

friend, MISS D.R. WEIR, for the respondent.

(instructed by the Crown Solicitor for Queensland)

MASON CJ:	Yes, Mr McMillan.
MR McMILLAN:	I hand up a copy of outline of submissions.
MASON CJ:	Thank you.

MR McMILLAN:  There are only six. We will repair that over the

lunch-time period.

MASON CJ:	Yes.
MR McMILLAN:	Your Honours, the special leave point which the

applicant invites this Court to consider is that the

Court below failed to take into account the matters of substantial co-operation and the effect which a timely plea of guilty had on the criminal justice

system and by reason of that failure serious

injustice occurred to the applicant. One of the

problems with this matter is that it was an attorney's

appeal against a sentence in which the ground was

very simply put to which the applicant responded

and it will be noticed a response was briefly referred

to by the court below involving the timely plea of

guilty.

McHUGH J:  Can I just understand your point, Mr McMillan.

Does that mean that the head sentence was too high?

MR McMILLAN:  No, Your Honour. A court, in my submission, can

approach it in two ways, when it is effecting what

has been called a discount. It can either reduce the

head sentence which would normally be determined or

it can give the head sentence which it normally would

apply, but give a recommendation, or an earlier

recommendation, or release on parole.

In this case the learned sentencing judge appears

to have imposed a head sentence which reflected the gravity of the offence and the occurrences relating

to commission of that offence but imposed the

recommendation of only three months. The complaint

of the applicant is that by discharging that

recommendation period the court below has failed to

take into account the matters to which I earlier

referred. That is really the basis of the complaint

that brings the applicant to this Court.

BRENNAN J:  How do you say that they failed to take all

material facts into account?

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MR McMILLAN:  If I could take the Court to the passage

itself.

MASON CJ: ~They referred to it, did they not, at the foot of

page 96?

MR McMILLAN:  In the record numbering which I have at page 72,

that is at page 6 of the reasons.

MASON CJ:  Yes, page 6 of the reasons.

MR McMILLAN:  Yes. At the foot of the page:

It was drawn to our attention for the respondent that he pleaded guilty to

the charges and that he was co-operative

with the authorities -

then the court proceeds on. Now, nowhere, I would

submit, does the court look at the effect which that
degree of co-operation had in relation to the peculiar

set of facts in this case.

McHUGH J:  But surely the result itself demonstrates it.

Three years for this offence is a very light sentence,

is it not? There are 69 offences, large sums of

money involved and probably to the detriment of a lot

of people. Three years is surely a light sentence.

MR McMILLAN:  One must start with the following proposition,

with respect, Your Honour. The maximum for each of the 69 offences were three years, the maximum for the

two counting offences was 10 years. All these offences

were, as it were, bound up with the one course of

conduct, albeit over a period of years. The court

below, that is the sentencing court, looked at the

fact that really the Crown could not show that there

was any personal gain by the applicant. He was,

in fact, as it were, robbing Peter by drawing all

funds pursuant to these bogus loan applications and

putting in through another door, as it were a

-r· •• re~olving door of the credit union, so that the

·,~{debt/loan ratio no doubt looked different, and then

~rhe compounded that or sought to - - -

McHUGH J:  That would be deceiving the creditors, deceiving

other people.

MR McMILLAN:	Your Honour?
McHUGH J:	The result was thai creditors were decei~ed, other

people were deceived.

MR McMILLAN:	Yes, but
BRENNAN J:	A lot of money was lost.

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MR McMILLAN:	In the overall context, yes.	No exact figure

can be identified, not that that is needed in a case of this kind, I readily concede, but nevertheless it wacs spread over a number of organizations and what the

acts of the applicant did was to postpone, as it were,

the evil day. The credit union was obviously faced

with major problems. It could not survive. By his
actions it kept surviving and the directors were kept

away from the true facts, but then the day of reckoning

came and the credit union was taken over by another

credit union.

McHUGH J:	But the day of reckoning was a lot worse by reason of what he had done.
MR McMILLAN:	To this extent, Your Honour, which is - what

clearly emerges is that the debts rose, yes, but not

directly through his activities. Certainly they

would have been picked up earlier if he had not

committed these acts.

BRENNAN J:  Mr McMillan, once it appears that the Court of

Criminal Appeal took cognizance of the fact that there

had been a plea of guilty, are you able to put this

case on any higher footing than that the court did not

give that factor sufficient weight?

MR McMILLAN:  Only to this extent, Your Honour, that when one

reads the single decision very closely one cannot

see a proportion, as it were. It really gets down

to a proportionate argument. The learned Chief Justice

recites the effects which the actions of the accused

had but then when looking at the balance - it is a

question of balance - it is dealt with in one short

phrase and that is really what the applicant

complains about, that if there had been a trial there

would have been a much greater load placed upon the

criminal justice system of this State and the expense

which would have been expended by the police and

investigating authorities, that was conceded in that

narration of facts document to a high degree and both

th~ prosecutor before the sentencing judge and the
sentencing judge himself acknowledged that.	So with

those facts, as it were, in one side of the balancing

apparatus, it would appear from the way it was dealt

with that enough cognizance was not taken.

MASON CJ:  That does not look like a special leave point, does

it? There is no question of principle involved.

MR McMILLAN:  Only to this extent, Your Honour, that it is

emerging through various decisions in State courts

which, if the Court allowed me to proceed, it can be

seen that matters of contrition have been put to one

side now and that for this court, that is the Court

of Criminal Appeal, to deal with this very important

principle, emerging principle, in the way it has, it

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enlivens the jurisdiction of this Court by way of

the special leave application.	I cannot put it
any higher than that.	It really is a case of fruit
i~ the pudding.	You look at the way the Court of

Criminal Appeal approached it and you look at the way

that other courts of criminal appeal have approached
this point and at the end of that examination you

say, "They haven't dealt with it. This is a matter

which this honourable Court should examine and lay down

my submission, on the injustice to this individual". guiding principles which would have an effect, in leave point.

MASON CJ:  The Court need not trouble you, Mr Byrne. In the

view of the Court, there is no question of general

principle involved in this application. It must

therefore be refused.	The Court will now adjourn
until 2.15 pm.

AT 12.50 PM THE MATTER WAS ADJOURNED SINE DIE

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